MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           22 March 2000
	DOCKET NUMBER:   AR1999028694

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
				
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Arthur A. Omartian		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his previous request to correct his records by upgrading his discharge to honorable 

APPLICANT STATES:  In effect, the applicant deferred to counsel. 

COUNSEL CONTENDS:  That the discharge is improper because the offense charged (16-day AWOL) could not have resulted in a punitive discharge.  The Army Discharge Review Board’s October 1981 decision is cited to demonstrate that the discharge was improper.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to 
reflect the Board's original consideration of his case on 18 March 1987 (COPY ATTACHED).

The ADRB”s decisional document notes that “under today’s regulation the applicant could not have been discharge for the offenses for which charged at the time.”   The decision goes to note that given his record of misconduct (five NJPs a summary court-martial conviction and a special court-martial conviction) the applicant would have undoubtedly received the same characterization of service.  Therefore, the ADRB found the discharge improper but equitable  The members or the panel voted unanimously to change the reason for the discharge and leave the characterization unchanged.

At the time of the applicant’s discharge the escalator clause associated with the table of punishments in the UCMJ provided that the applicant could have received a punitive discharge because he had two previous court-martial convictions.  Subsequently court-cases established that summary court-martial convictions could be applied under the escalator clause only if an attorney had represented the accused or if such representation had been waived. 

Department of Defense Directive 1332.28 (discharge review procedures and standards) provides, in pertinent part, that a discharge shall be deemed equitable unless the policies and procedures under which the applicant was discharged differ materially from those currently in effect, provided that the current policies or procedures represent a substantial enhancement of rights and there is substantial doubt that the same result would have obtained under the current standards.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.   Notwithstanding, the ADRB finding that the discharge was “improper “ because the applicant could not have received a punitive discharge under [then] current standards. The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  Additionally, that finding appears to be a misapplication of the concept of “current standards” which, under the governing directive is a matter of equity.

2.  Furthermore, the ADRB looked at the applicant’s overall record, including his repeated misconduct and concluded that the character of the discharge is commensurate with the applicant's overall record of military service.  This Board agrees.
 
3.  The original discharge was neither improper nor inequitable.  The ADRB decision to change the reason was within that board’s authority and the result does accurately describe the applicant’s service.  No further change is warranted. 

4.   Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3-year time limit.  Prior to reaching this determination the Board looked at the entire file.  Although the decisional document may not clearly reflect that the Board considered the merits of the case, it does not normally deny applications simply because they were not submitted within 3 years.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

 __JMA__  __TSK__  ___AAO__  DENY APPLICATION

Karl F. Schneider
   Director, Army Review Board Agency

	AR1999028694

RECON		
DATE BOARDED	20000322	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	199750404	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.03	
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